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Appellate Court Affirms Dismissal of Legal Malpractice Lawsuit Against Lawyer who Defended Another Lawyer for 17 years

Source: LAMET v. Levin, Ill: Appellate Court, 1st Dist., 3rd Div. 2015 – Google Scholar

This is a legal malpractice case that the Illinois court held was barred by the six-year statute of repose and also by the two-year statute of limitations. Lamet hired Levin in 1994 to represent him in a dispute with his landlord. Lamet’s landlord claimed that Lamet owed $34,000. Levin fought the litigation for 17 years. (Levin claimed that he was being charged for more square feet than he actually rented). Ultimately, in 2011, Levin recommended that the litigation be settled for the sum of $150,000.

Lamet then sued Levin for legal malpractice “essentially asserting that Levin should have advised him in 1994 to accede to his landlord’s demands and forgo defense of the lawsuit.”

The trial court dismissed the case and the Illinois Appellate Court affirmed the dismissal in an opinion by Justice Mason.

The court explained that the statute of repose begins to run not when the negligent act is discovered by the client but when the negligent act occurred. The court explained: “The statute of repose in a legal malpractice case begins to run as soon as an event giving rise to the malpractice claim occurs, regardless of whether plaintiff’s injury has yet been realized. Mauer v. Rubin, 401 Ill. App. 3d 630, 639 (2010). Illinois courts have consistently held that the statute of repose is not tolled merely by the continuation of the attorney-client relationship. Id. at 640 (citing Witt v. Jones & Jones Law Offices, P.C., 269 Ill. App. 3d 540, 544 (1995)); see Hester v. Diaz, 346 Ill. App. 3d 550 (2004); Serafin v. Seith, 284 Ill. App. 3d 577 (1996). Rather, “`where there is a single overt act from which subsequent damages may flow, the statute [of repose] begins to run on the date the defendant invaded the plaintiff’s interest and inflicted injury, and this is so despite the continuing nature of the injury.'” Mauer, 401 Ill. App. 3d at 642 (quoting Feltmeier v. Feltmeier, 207 Ill. 2d 263, 279 (2003)). Moreover, the period of repose is not tolled by the attorney’s ongoing duty to correct past mistakes. Fricka v. Bauer, 309 Ill. App. 3d 82, 84 (1999).”

Under this law, the claim for negligence in 1994 was barred by the statute of repose.

The court also concluded that the claim was barred by the two-year statute of limitations. “Nevertheless, we point out that Lamet knew or should have known since 1994 that any defense based on a claim that the actual square footage of the leasehold was substantially overstated was factually unfounded. On May 23, 1994, prior to Levin’s appearance in the underlying case, an architect hired by Lamet sent a letter addressed to Richman at Lamet’s office, in which he calculated the actual square footage of the office. Lamet argues that this letter was sufficient to put Levin on notice that his square footage argument was meritless. But, by the same token, the letter should have put Lamet on notice that the argument was meritless, or at least prompted further inquiry on his part. This is particularly true since Lamet is a lawyer, not a layperson who is presumptively unable to discern malpractice as it occurs. Butler v. Mayer, Brown & Platt, 301 Ill. App. 3d 919, 923 (1998).”

Lastly, the court held that there was no fraudulent concealment of any fact by Levin that would allow Lamet to argue that the statute of limitations was tolled. Because Levin did not fail to disclose any material fact, the fraudulent concealment exception did not apply.

In sum, this is an easy statute of repose case that offers the reader an introduction to the two statutes that so often bar legal malpractice claims.

Edward X. Clinton, Jr.

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